20

- 3839 Moscoso

- Mancia v. Garland BIA Poczter , IJ A 209 283 928 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**


## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FED**  **ERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A PARTY CITING A SUMMARY ORDER**  **MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, h**  **eld at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 21**  **st da**  **y of July**  **, two thousand twenty** 
**- two** 

**.** 4 5 **PRESENT:** 6 **ROBERT D. SACK ,**  7 **RAYMOND J. LOHIER, JR. ,**  8 **SUSAN L. CARNEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ANA MARIA MOSCOSO**

**- MANCIA**  **,** 13 **Petitioner ,**  14 15
**v. 20** 

**- 3839**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **R espondent** 

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Michael E. Rosado , Laurel, MD. 23 24 **FOR RESPONDENT:** Brian M. Boynton , Acting 25 Assistant Attorney General; 26 Benjamin Mark Moss , Senior 27 Litigation Counsel ; Sara J. 282 Bayram , Trial Attorney , Office of 1 Immigration Litigation , United 2 States Department of Justice, 3 Washington, DC. 4 5 U PON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED. 9

Petitioner Ana Maria Moscoso

- Mancia , a native and citizen 10

of El Salvador , seeks review of a n October 9 , 2020 , decision 11
of the BIA affirming a June 25 , 2018 , decision of an 12

I mmigration Judge (“IJ”) d enying Moscoso

- Mancia’s application 13
for asylum, withholding of removal , and relief under the 14
Convention Against Torture (“CAT”). In re Ana Maria Moscoso

15

Mancia , No. A 209 283 928 (B.I.A. Oct. 9 , 2020 ), aff’g No. 16

A 209 283 928 (Immig. Ct. N.Y. City June 25 , 2018 ). We assume 17
the parties’ familiarity with the underlying facts and 18
procedural his tory. 19
Under the circumstances, we have reviewed the IJ’s 20
decision as modified and supplemented by the BIA. See Xue 21
Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 22
Cir. 2005); Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 23

2005). We review competency and adverse credibility findings 24

for substantial evidence , treating “the administrative 253 findings of fact . . . [as] conclusive unless any reasonable 1
adjudicator would be compelled to conclude to the contrary .” 2

8 U.S.C. § 1252(b)(4)(B ) ; see Hong Fei Gao v. Sessions , 891 3
F.3d 67, 76 (2d Cir. 2018); Diop v. Lynch , 807 F.3d 70, 75 4
(4th Cir. 2015). We find no error in the agency’s decision 5

not to evaluate Moscoso

- Mancia ’s competen cy or its 6

determination that she was not credible as to her claim of 7
persecution on account of her membership in the social group 8

of Salvadoran women who are victims of domestic violence and 9
unable to leave their abusive partners. 10

**A. Competency**  11
“[A]n alien is presumed to be competent to participate 12
in removal proceedings ” and “[ a]bsent indicia of mental 13
incompetency, an Immigration Judge is under no obligation to 14
analyze an alien’s competency.” Matter of M

- A

- M

- , 25 I. & 15

N. Dec. 474, 477 (B

. I

. A

. 2011). “Indici a of incompetency 16

include . . . the inability to understand and respond to 17
questions, the inability to stay on topic, . . . a high level 18
of distraction[,] . . . [or] evidence of mental illness . . 19

. .” Id. at 479

– 80. “[T]he test for determining whether an 20
alien is competent to participate in immigration proceedings 21
is whether he or she has a rational and factual understanding 224 of the nature and object of the proceedings, can consult with 1
the attorney or representative if there is one, and has a 2
reasonable opportunity to examine and present evidence and 3

cross - examine witnesses.” Id. at 484. 4

Moscoso

- Mancia ’s counsel did not raise any concerns as 5
to her competency and her psychological evaluation did not 6
provide any basis to conclu de that she had difficulty 7
understanding the nature of her removal proceedings or 8
communicating with others . Accordingly , the re were no 9
indicia of incompetency to prompt inquiry into her 10

competence. See id. (“[I]f there are no indicia of 11
incompetency in an alien’s case, no further inquiry regarding 12
competency is required.”). Further, the record does not show 13

that Moscoso

- Mancia had difficulty understanding proceedings 14
or presenting her evidence

. Contrary to her contention that 15
her testimony revealed tha t she had difficulty remembering 16
certain events, the record shows that she answered every 17
question responsively and expressed difficulty with recall 18
only when confronted with prior inconsistent statements. 19
Accordingly, given that Moscoso

- Mancia knew the n ature of her 20
proceedings, communicated effectively, and testified 21
responsively, the agency did not err in declining to evaluate 225 her competency further. See id. at 479

– 84. 1

**B. Adverse Credibility Determination**  2
“Considering the totality of the circumstances, and all 3
relevant factors, a trier of fact may base a credibility 4

determination on

. . . the consistency between the applicant’s 5
or witness’s written and oral statements (whenever made and 6

whether or not under oath, and considering the circumstances 7
under which the statements were made), the internal 8
consistency of each such statement . . . , and any 9
inaccuracies or falsehoods in such statements, without regard 10
to whether an inconsistency, inaccuracy, or falseh ood goes to 11
the heart of the applicant’s claim, or any other relevant 12

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 13
an IJ’s credibility determination unless, from the totality 14
of the circumstances, it is plain that no reasonable fact

15

finder could make such an adverse credibility ruling.” Xiu 16
Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) ; accord 17
Hong Fei Gao , 891 F.3d at 76. Substantial evidence supports 18
the agency’s determination that Moscoso

- Mancia was not 19

credible as to her claim of domestic violence

. 20
As an initial matter, the agency did not err in relying 21

on the record of Moscoso

- Mancia’s credible fear interview in 226 assessing credibility because the interview record bears the 1

hallmarks of reliabil ity: it was conducted with an 2
interpreter, it was memorialized in a typewritten question

3

and

- answer format, the questions posed were designed to 4

elicit details of an asylum claim, and her responses indicated 5
that she understood the questions posed. See Ming Zhang v. 6

Holder , 585 F.3d 715, 724

– 25 (2d Cir. 2009) (requiring 7
scrutiny of credible fear interviews but finding record 8
reliable where it was typewritten, demonstr ated that the 9
applicant understood the questions, reflected questions about 10
past harm or fear of future harm, and was conducted with an 11
interpreter). C ontrary to Moscoso

- Mancia’s contention, the 12

interview record re flects that the interviewer reviewed the 13
summary of her statement with her and that she indicated that 14
the summary was correct. 15
The agency reasonably relied on inconsistencies between 16

Moscoso

- Mancia’s statements at her credible fear interview 17
and her testimony before the IJ regarding whether she was 18
legally married to her abuser , whether she told her parents 19

about the abuse, and how she escaped from the house she shared 20

with her abuser

. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai 21

Gao v. Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 227 sing le inconsistency might preclude an alien from showing 1
that an IJ was compelled to find him credible. Multiple 2
inconsistencies would so preclude even more forcefully.”). 3

Moscoso

- Mancia did not compellingly explain these 4

inconsistencies. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 5
Cir. 2005) (“A petitioner must do more than offer a plausible 6
explanation for his inconsistent statements to secure relief; 7

he must demonstrate that a reasonable fact

- finder would be 8
compelled to credit his testimony.” (quotat ion marks 9
omitted) ) ; see also Ming Zhang , 585 F.3d at 722 (noting that 10
an applicant’s assertion that she was nervous or afraid does 11

not overcome a record of a sworn statement that has been 12
deemed sufficiently reliable for purposes of a credibility 13

determin ation)

. The agency also reasonably relied on her 14

failure to rehabilitate these inconsistent statements with 15
corroborating evidence

. See Biao Yang v. Gonzales , 496 F.3d 16
268, 273 (2d Cir. 2007) ( “An applicant’s failure to 17

corroborate his or her testimony may bear on credibility, 18
because the absence of corroboration in general makes an 19
applicant unable to rehabilitate testimony that has already 20
been called into question.” )

. 21

Given the inconsistencies and lack of corroboration, the 228 agency’s adver se credibility determination is supported by 1

substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii) ; 2

Likai Gao , 968 F.3d at 145 n.8

. That determination i s 3
dispositive of asylum, withholding of removal, and CAT relief 4

because all three claims were based on the same factual 5
predicate

. * See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 6
Cir. 2006). Accordingly, we do not reach the agency’s 7
alternative finding that Moscoso

- Mancia failed to satisfy her 8
burden of showing that Salvadoran officials were unable or 9
unwilling to protect her

. See INS v. Bagamasbad , 429 U.S. 10
24, 25 (1976) (“As a general rule courts and agencies are not 11
required to make findings on issues the decision of which is 12
unnecessary to the results they reach.”). Further, as the 13

Gover nment argues, the IJ’s denial of a continuance is not 14

before us because the BIA found it unnecessary to determine 15
whether the proposed social group was cognizable given the 16
dispositive adverse credibility determination

. See Xue Hong 17

Yang , 426 F.3d at 522; Lin Zhong v. U.S. Dep’t of Justice , 18

* The BIA and Government incorrectly conclude that Moscoso

Mancia waived and thus failed to exhaust her claims for withholding of removal and CAT relief. The IJ denied all relief on credibility grounds ; therefore, any challenge to the adverse credibility de termination necessarily included a challenge to the denial of those forms of relief.9 480 F.3d 104, 122 (2d Cir. 2007) (“[W]e may consider only 1
those issues that formed the basis for [the BIA’s] 2
decision.”). 3
For the foregoing reasons, the petition for review is 4

DENIED . All pending m otions and applications are DENIED and 5
stays VACATED. 6

FOR THE COURT: 7 Catherine O ’Hagan Wolfe , 8 Clerk of Court 9 10